Tuesday, 15 August 2017

Supreme Court recognizes a French ordonnance de référé

On the occasion of an application for the declaration of enforceability of a decision of the Paris Commercial Court, the Supreme Court was given the chance to rule on the compatibility of the French ordonnance de référé with the Greek public order. In addition, the court applied diligently the case law of the CJEU in the field of provisional measures.

[Supreme Court (Άρειος Πάγος) 93/2017, unreported]

THE FACTS: The petitioner for cassation is a Greek company (G); the appellee a French company (F). Following the publication of an ordonnance de référé by the Tribunal de commerce de Paris, ordering G to pay the amount of 90.000 € to F, the latter sought to declare the ordonnance enforceable in Greece. The Athens First Instance court granted exequatur [Judgment Nr. 3856/2012, unreported], whereas the Athens Appellate Court dismissed the appeal lodged by G [Judgment Nr. 5389/2014, unreported]. G filed a cassation, challenging the 2nd instance ruling in mainly two aspects: First, the French court had no jurisdiction to try the case; second, an ordonnance de référé violates both European and Greek public policy. In particular, European public policy was supposedly infringed, because the French decision did not guarantee repayment to the defendant of the sum awarded, if the plaintiff is unsuccessful as regards the substance of his claim; domestic public policy was violated because such a form of provisional measures is alien to the Greek legal order, which allows provisional compensation in exceptional cases stipulated by law, commercial contractual obligations excluded. 

THE RULING: The Supreme Court began with an extensive analysis on the treatment of provisional measures in the Brussels I context, focusing on the findings of the CJEU in the cases C-391/95, Van Uden Maritime BV / Kommanditgesellschaft and C-99/96, Hans-Hermann Mietz / Intership Yachting Sneek BV. In order to classify the legal nature of ordonnance de référé, it referred to the decision of the CJEU in the Reichert case [261/1990, Mario Reichert / Dresdner Bank AG].
It then examined the public policy considerations put forward by the appellant: First, the Supreme Court underlined the existence of a choice of forum agreement in the general terms of the contract signed by the parties, which tacitly extends / covers summary proceedings. Hence, the French court had jurisdiction pursuant to Art. 23 Brussels I Regulation and 48 Code de procédure civile; therefore, a repayment guarantee was not a necessary condition.

Secondly, with regard to the nature of ordonnance de référé, the Supreme Court clarified, that mere differences in the fashion proceedings are structured may not result to public policy violation as such. In particular, so the court, the fact that an institution similar to the ordonnance de référé is not included in Articles 728-729 Greek Code of Civil Procedure, i.e. the provisions regulating the issue of provisional compensation, does by no means violate fundamental legal, social or moral principles of the domestic legal order. Similarly, Article 692 Para 4, i.e. the rule forbidding full satisfaction of the applicant in summary proceedings, is not infringed.

In conclusion, all efforts of G to reverse the instance rulings were dismissed.

COMMENT: It is common knowledge that the public policy defence serves always as the final frontier for debtors wishing to hinder the execution of a foreign judgment in the place where they own property. The Supreme Court was adamant in its ruling: The foreign judgment need not emanate from a procedure, which resembles fully to its domestic equivalent. The fact that domestic rules do not foresee provisional compensation in the course of a license agreement has been rightfully considered as a minor divergence, which stands no chance of supporting a (profound) public policy violation. As a conclusion, the ruling of the Supreme Court follows the path opened by quite a number of previous judgments, which confine the boundaries of the public policy ground for refusal in accordance with European perceptions.

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Tuesday, 4 April 2017

First Request for a Preliminary Ruling by a Greek Court on the Interpretation of Brussels II Bis Regulation

The Brussels II bis Regulation is a frequent visitor in cross border family cases before Greek courts, most notably those dealing with divorce matters. However, no preliminary request has been sent up to date to Luxemburg, not even from the Supreme Court. The Leros Justice of the Peace dared the above step, submitting however a question which quite probably goes to the wrong direction.

Leros Justice of the Peace Nr. 22/2016, unreported 

THE FACTS: The parties are Alessandro Saponaro and Kalliopi-Chloi Xylina, i.e. an Italian and a Greek national. They are a married couple, living with their infant child in Rome. They filed an application for renunciation of succession on behalf of their daughter. In particular, the applicants asked the Leros court for the disclaimer of the grandfather’s inheritance, who died on May 10, 2015 on the island of Leros, where he had also his habitual residence. 

THE RULING: The court began its analysis by excluding the application of the Succession Regulation Nr. 650/2012: Pursuant to Article 83, this Regulation shall apply to the succession of persons who die on or after 17 August 2015. Surprisingly enough, the court continues by invoking Brussels II bis Regulation, whose application has been accepted almost axiomatically. It refers to Articles 1 Para 1 (b) & Para 2 (b), (c) and (e), passing then to the definitions given under Article 2.7 & 2.8, and finishing with Article 12 Para 3, after surpassing the ground rule of Article 8 Brussels II bis as follows: Given the Greek nationality of the child, the requirements set under Art. 12 Para 3 (a) are considered as granted. The court sees however a problem in the application of Art. 12 Para 3 (b), which triggered the following request addressed to the CJEU: 

In the event that a petition for leave to renounce an inheritance is brought before a Greek court by the parents of a minor child who is habitually resident in Italy, is it the case that, if there is to be a valid prorogation of jurisdiction under Article 12(3)(b) of Regulation No 2201/2003 (1): (a) the unequivocal agreement to the prorogation by the parents is demonstrated by merely the lodging of the application before the Greek court, (b) the prosecutor before the first instance courts is one of the parties who must agree to the prorogation at the time of the lodging of the application, given that under Greek law he is legally a party to the relevant proceedings, (c) the prorogation of jurisdiction is in the best interests of the child, given that the child and the applicants, who are the child’s parents, are habitually resident in Italy, while the place of residence of the person from whom property is inherited at the time of his death was Greece and the property inherited is in Greece.

[Request for a preliminary ruling from the Irinodikio Lerou (Greece) lodged on 9 Νοvember 2016 — (Case C-565/16), OJ C 22/23.01.2017, p. 13]

COMMENT: There is no doubt that the request raises serious questions as to its content. A sheer look at Article 1 Para 3 (f) [This Regulation shall not apply to: … (f) trusts or succession] would suffice for its rejection as inadmissible. The Leros court did not mention the above provision; hence, it was not confronted with the question whether it is possible to apply the Regulation in succession cases, such as the renouncement of inheritance. 

There is however an interesting background in the case at hand: According to Greek case law, an application such as the one forming the subject matter of the case, is to be submitted to the court of the child’s habitual residence. There has been some reaction against this direction, coming however mostly by legal scholars, not by courts of law. At the same time, given that this application is tried in the course of voluntary proceedings, there is no space for raising the choice of forum argument, because Article 740 Para 2 Greek Code of Civil Procedure (CCP) explicitly rules out such possibility.

In light of the above, the Leros court would have to dismiss the application, by virtue of Articles 797 & 740 Para 2 CCP. Presumably this result was leaving a bitter taste to the Justice of the Peace, especially in light of Article 13 in conjunction with Art. 4 of the Succession Regulation Nr. 650/2012, which grants jurisdiction to the courts where the deceased had its habitual residence even in cases related to a waiver of succession. 

Nevertheless, this is no more than speculation. The conclusion, which could also serve as a sort of prediction, is that the CJEU will most probably dismiss the request, because the subject matter of the dispute falls out of the scope of the Brussels II bis Regulation.

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